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Alaya And Another v Director Of Immigration And Another [Decision On Leave Application]

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date13 February 2019
Neutral Citation[2019] HKCFI 358
Year2019
Judgement NumberHCAL865/2017
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL865/2017 ALAYA AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 865/2017

[2019] HKCFI 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 865 of 2017

BETWEEN

Alaya 1st Applicant
Jakir Anas Pool 2nd Applicant
and
Director of Immigration 1st Putative Respondent
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office		 2nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or
consideration of the documents and the Applicants being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The 1st applicant (“A1”) is a 34-year-old national of Bangladesh who arrived in Hong Kong on 12 November 2013 with permission to remain for employment as a foreign domestic helper until the expiration of her employment contract on 12 November 2015 or within two weeks of its early termination. When her contract was prematurely terminated on 25 November 2013, she however did not depart and instead overstayed until she was arrested by police on 16 September 2014. After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by certain Awami League (“AL”) people for refusing to join their political party and by her creditors/guarantors for failing to repay her loan. Upon giving birth to her daughter, the 2nd applicant (“A2”) on 13 October 2015 in Hong Kong, A1 also lodged a non-refoulement claim for A2 on the same basis. They have been released on recognizance pending the determination of their claim.

2. A1 was born in Village Sarif Sundar, District Rangpur, Bangladesh. Her parents passed away when she was small and she was taken by her neighbours to Dhaka where she received seven years of education before working in the garment factory.

3. In 2003 she started to support the Bangladesh Nationalist Party (“BNP”) regularly attending their meetings and distributing the party leaflets, and in 2005 she changed her job to work as a beautician in Mirpur in Dhaka City to earn her living.

4. One day in 2013 she was approached by some AL members in Mirpur to quit BNP and to join their party, and when she refused, they were unhappy but did not say anything else. Sometime thereafter in one evening A1 was abducted by several AL members to a quiet place where she was raped by two of them, and before she was released she was told that it was her punishment for refusing to join AL and was threatened not to tell anyone after the rape otherwise she would be killed. As a result A1 did not report the rape to the police.

5. About a month after the rape incident, A1 ran into some of the same AL members who again harassed and threatened her. As she felt it was no longer safe for her to remain in Bangladesh, she decided to apply to work as a foreign domestic helper in Hong Kong, and borrowed a loan of 140,000 Taka from a local bank with two friends as guarantors to pay her employment agency for the job, for which she planned to repay by monthly instalments from her future salaries.

6. After receiving training for several months she departed Bangladesh on 12 November 2013 for her employment in Hong Kong, but when her contract was terminated shortly thereafter and hence she was never able to make any repayment of her loan to the bank who then turned to her guarantors for payment, and as a result her guarantors have been demanding on the phone for her to repay them or else they would harm or kill her.

7. During her stay in Hong Kong she met a man also from Bangladesh with whom she has since formed a relationship before her arrest by the police, and after lodging her non-refoulement claim with the Immigration Department and her subsequent release on recognizance, she subsequently married this man and gave birth to A2 on 13 October 2015, for whom she later also lodged a non-refoulement claim on the same basis, and for which they each completed a Non-refoulement Form respectively on 12 March 2015 and 7 March 2016 but requested that their claim be jointly considered together, and subsequently attended screening interviews together before the Immigration Department with legal representation from the Duty Lawyer Service.

8. By a Notice of Decision dated 25 November 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”)...

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1 cases
  • Re Alaya And Another
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 1 Marzo 2021
    ...of the Court): Introduction 1. On 13 February 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 358), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicants to apply for judicial review against the decis......

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